Warrantless cell phone search gets a green light in California

What incriminating info can be found on your cell phone? According to the …

The contents of your cell phone can reveal a lot more about you than the naked eye can: who your friends are, what you've been saying and when, which websites you've visited, and more. There has long been debate over user privacy when it comes to various data found on a cell phone, but according to the California Supreme Court, police don't need a warrant to start digging through your phone's contents.

The ruling comes as a result of the conviction of one Gregory Diaz, who was arrested for trying to sell ecstasy to a police informant in 2007 and had his phone confiscated when he arrived at the police station. The police eventually went through Diaz's text message folder and found one that read "6 4 80." Such a message means nothing to most of us, but it was apparently enough to be used as evidence against Diaz (for those curious, it means six pills will cost $80).

Diaz had argued that the warrantless search of his phone violated his Fourth Amendment rights, but the trial court said that anything found on his person at the time of arrest was "really fair game in terms of being evidence of a crime."

In its review of the case, the Supreme Court held that the Fourth Amendment didn't apply to the text messages on Diaz's cell phone at the time of arrest. The court cited a number of previous cases wherein defendants were arrested with all manner of incriminating objects—heroin tablets hidden in a cigarette case, paint chips hidden in clothing, marijuana in the trunk of a car—which did not require a warrant to obtain. The court said that the phone was "immediately associated" with Diaz's person, and therefore the warrantless search was valid.

The decision was not unanimous, though. "The potential intrusion on informational privacy involved in a police search of a person‟s mobile phone, smartphone or handheld computer is unique among searches of an arrestee's person and effects," Justices Kathryn Mickle Werdegar and Carlos Moreno wrote in dissent.

They went on to argue that the court majority's opinion would allow police "carte blanche, with no showing of exigency, to rummage at leisure through the wealth of personal and business information that can be carried on a mobile phone or handheld computer merely because the device was taken from an arrestee's person. The majority thus sanctions a highly intrusive and unjustified type of search, one meeting neither the warrant requirement nor the reasonableness requirement of the Fourth Amendment to the United States Constitution."

The courts have gone back and forth in the past on how much privacy protection should be given to data that can be found on a citizen's cell phone. A Pennsylvania District Court ruled in 2008 that law enforcement must get a warrant before acquiring historical records of a cell phone user's physical movements. The same year, the 9th Circuit Court said that the text messages of a police officer had to meet the standards of a reasonable search before law enforcement could access them. In 2010, however, the US Supreme Court said that government employers have the right to read transcripts of employees' e-mails, IMs, texts, and other communications, and that the Fourth Amendment wouldn't protect them from a government search.

South Texas College of Law professor Adam Gershowitz argued in a 2008 paper that the proliferation of iPhone-like devices means that officers fishing through your pockets for weapons can suddenly access a plethora of sensitive documents, not to mention possible passwords. "[S]ince the Supreme Court has ruled that police have broad authority to arrest people for even trivial infractions, such as failure to wear a seat belt, the current rule gives law enforcement officers broad discretion to transform a routine traffic stop into a highly intrusive excavation of your digital life," Ars observed at the time.

Gershowtiz suggested a number of possibilities for how courts could distinguish between an appropriate cell phone search and an inappropriate one, but no such rules exist yet. In the meantime, California citizens may want to be extra careful about what gets stored on their devices, lest the police find a reason to dig up your sexy texts or communications with your private "dispensary."

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Jacqui is an Editor at Large at Ars Technica, where she has spent the last eight years writing about Apple culture, gadgets, social networking, privacy, and more. Emailjacqui@arstechnica.com//Twitter@eJacqui

What's the skinny on password-protecting your phone? Say you get thrown in the hoosegow for specious reasons that will shortly get you released, they can't compel you to divulge your password/code, can they?

So, if somebody has a briefcase of documents on them when they are arrested, are police allowed to search that? Seems like pretty much the same thing, except more people carry cell phones than briefcases these days.

I don't see why it has to be an all or nothing situation, which both this ruling and the recent one in Ohio -- as the article in Slashdot on this same topic referenced -- suggest: either the police have complete access or they don't. (And why is it the law seems to be getting less nuanced, anyway? So much for complex democracies and all that.)

Spurious speculative questions aside ... I think you can screen lock your cell phone and refuse to give up the password as part of taking the 5th. I think this has been held up in customs cases recently, but IANAL and I haven't kept up with the law.

LEOs can look through a briefcase on your person, but can they force you to give up the combination if it is a locked briefcase? Can they break it open with tools? I don't know, that seems a reasonable metaphor except...

They could hang on to the briefcase indefinitely while waiting for court approval. The odds are decent with a smartphone that it could be remote-wiped before court approval was obtained for searching the phone. What then?

So if I am riding in a car with someone whom they decide to arrest, and my cell phone is sitting in the center console of the car, who gets to decide whether it is mine or the other person's? Me or the cop?

So if I am riding in a car with someone whom they decide to arrest, and my cell phone is sitting in the center console of the car, who gets to decide whether it is mine or the other person's? Me or the cop?

IIRC, it's irrelevant. Didn't the Supreme Court rule sometime in the last few years that all passengers in a car at a traffic stop are considered detained, and all are subject to the same (low) standards for search and seizure as the driver? Anybody remember the case? I want to say it was out of Arizona.

EDIT: Hmm...the Arizona part in my head was probably from Gant, but that doesn't seem to be the case I'm thinking of. Maybe I'll look into it later. I'm pretty sure, though, that all occupants of a vehicle in a traffic stop are similarly detained, meaning whether it's a driver's or passenger's cellphone may not matter.

...... The odds are decent with a smartphone that it could be remote-wiped before court approval was obtained for searching the phone. What then?

Then your go to trial for felony destruction of evidence...

I'd like a attorneys opinion on the pin pad lock, I'm aware of the customs cases, but curious about domestic/state law in that regard. Customs is a no man's land so what applies there is always very different.

I wonder if it is screenlocked with a password or pass-gesture-android-thingy, can they force you to give up the code without a warrant/court-order?

I don't know the legal answer, but my answer would be that I plead the both 5th and my Miranda rights. And I want a lawyer.

I think that would be my first response. If they at least don't tell me what I'm being detained for the only response out of my mouth is "I'm invoking my right of silence and I want my lawyer." The only way I will unlock my phone for them is if they present me with a court order saying the judge says I have to.

Cops too often think because they have you in a room you can't get out of they can do as they please. Always be respectful but you have rights and they need to understand that.

I hope this will be useful for traffic stops involving phoning while driving in order to demonstrate when the phone was in use. I am, however, concerned about more detailed aspects of privacy. Smart crooks will password protect their phones, smarter crooks will use passwords long enough to defeat simple unlock algorithms. However, most people do not lock their phones because of the inconvenience or use short passwords for the same reason.

I wonder if it is screenlocked with a password or pass-gesture-android-thingy, can they force you to give up the code without a warrant/court-order?

I don't know the legal answer, but my answer would be that I plead the both 5th and my Miranda rights. And I want a lawyer.

I think that would be my first response. If they at least don't tell me what I'm being detained for the only response out of my mouth is "I'm invoking my right of silence and I want my lawyer." The only way I will unlock my phone for them is if they present me with a court order saying the judge says I have to.

Cops too often think because they have you in a room you can't get out of they can do as they please. Always be respectful but you have rights and they need to understand that.

Just be aware that if they have any probable cause whatsoever to believe your phone contains evidence of a crime, they're going to get that warrant.

This is, more than anything, a good reason to keep your data in the cloud, and have your phone set to automatically log OUT of your systems if you don't keep yourself logged in, a la a dead-man's switch.

I would never give my pin or unlock pattern out to anyone. Whats on my phone is my information. If you want to talk with my lawyers and then get a court order I beg you to do so. But in the mean time im sure i could factory restore my phone or anything i wanted to do with it if i was doing something illegal. I have 3 Security features running on my Droid. Trust me if you take my droid i will be showing up at your house, after i get the GPS and then remote wipe it.

* Other thoughs*- "officer i forget the password I'm on my way to Verizon right now to get it master unlocked"- "here you go officer, good luch with the unlock and then even better luck for breaking the encryption because i forget it all"

- And as for what others have said if your phone gets taken and its on. If you phone by chance has a text message sent to it from a random number that is a key word for some wipe program. "sry court but my phone has never worked right" or be like idk how it happened someone probably hacked my phone. Just act dumb usually works.

I hope this will be useful for traffic stops involving phoning while driving in order to demonstrate when the phone was in use. I am, however, concerned about more detailed aspects of privacy. Smart crooks will password protect their phones, smarter crooks will use passwords long enough to defeat simple unlock algorithms. However, most people do not lock their phones because of the inconvenience or use short passwords for the same reason.

They can get a warrant to get the info from the phone company. Things are time stamped.

This just sounds like a way to bypass warrants and the phone company to get information.

I would also like to know what many have asked already. What if its locked and you plead the 5th? Obstruction of justice? Either way I think the cops would take the phone till they get access. Either by breaking in or a court order for you to give the password.

So if I am riding in a car with someone whom they decide to arrest, and my cell phone is sitting in the center console of the car, who gets to decide whether it is mine or the other person's? Me or the cop?

If neither of you touch it, then there is no "immediate association" between you and the device, and therefore it can't be searched as part of your personal effects, but would be covered under the search rules covering the contents of the vehicle. Of course, IANAL...

Again, think practical here. The cops are not going to pull out your fingernails one by one till you divulge your passlock. This law only affects people with out an understanding of protecting their privacy, which is not the average Arsian. The ecstasy dealer in the article is doubly stupid as everyone (here at least) knows your telecommunications can and will be accessed by the authorities - on the phone company side - if required.

From another angle, can my employer sue the police department for accessing a mobile device that contains trade secrets and other intellectual property they were not granted written approval to access? Especially when I warn them beforehand that accessing said mobile device constitutes a breach of my company's acceptable use and security policies?

There are issues of incremental privacy issues here, but given the case quoted, it's hardly earth-shattering. They had already found the ecstasy, and the officer probably felt the phone fell under the plain sight rule. This just clarifies it (and I don't know you could make the case that the officer was acting in bad faith. Once you have the drugs in hand, you probably expect searching everything in the car is going to be admissible). You don't have to give up your PIN or unlock the phone, I'm sure (as you are never compelled to speak to an officer). But if you get caught with ecstasy, they could just deliver the warrant directly to your phone provider for SMS logs.

Anyone traveling with a smart phone who does not screen lock it has a far higher likelihood of suffering serious problems involving privacy than a traffic stop.

Again, think practical here. The cops are not going to pull out your fingernails one by one till you divulge your passlock. This law only affects people with out an understanding of protecting their privacy, which is not the average Arsian. The ecstasy dealer in the article is doubly stupid as everyone (here at least) knows your telecommunications can and will be accessed by the authorities - on the phone company side - if required.

From another angle, can my employer sue the police department for accessing a mobile device that contains trade secrets and other intellectual property they were not granted written approval to access? Especially when I warn them beforehand that accessing said mobile device constitutes a breach of my company's acceptable use and security policies?

I doubt that law enforcement officers are bound by your company's AUP. Even assuming your company's AUP doesn't allow for lawful access by law enforcement officers acting in their official capacity, I'm fairly confident a judge in any such case would inform them that it should, and wave goodbye.

In 2010, however, the US Supreme Court said that government employers have the right to read transcripts of employees' e-mails, IMs, texts, and other communications, and that the Fourth Amendment wouldn't protect them from a government search.

If I recall the ruling, they can search those things on employer-supplied devices and channels, and personal equipment used for work.

Aside from that, while I generally agree that a readily-accessible item obviously associated with someone should be searchable, I also think certain classes of electronic devices should require a warrant because they act as a gateway to apps, programs, or services that would normally require a warrant. E.g. they can note that you have a phone, but I wouldn't even allow a search of call history or texts without a warrant so as to avoid "Oh, I was poking around the texts and accidently tapped the note program, and X note was up". It's hard to disprove, and easy to do if you have access to the phone.

Welcome to Police State USA. Don't worry about your sensitive business and/or personal data and communications. If you have done nothing wrong, you have nothing to hide. And don't worry about the possibility of being wrongly arrested; all of our Gestapo - I mean police officers - are honest, upstanding citizens who never make mistakes.

Okay, where is the probable cause here to search a cell-phone? You get stopped by a cop for speeding, sees you have an iPhone and then starts searching it? Warrentless search, right? Then they can go on a fishing expedition to see if you're doing anything bad...other than just speeding?

Now, in this case above, the police had arrested him for selling ecstasy and confiscated all his items on him at the time, including his phone. They argued they could search his phone without a warrant and the info they gathered on his phone helped convict him. What if he had a laptop also with him, could they do the same thing or would they have needed a warrant?

I wonder if it is screenlocked with a password or pass-gesture-android-thingy, can they force you to give up the code without a warrant/court-order?

My guess is, same as it applies to your locked trunk. They can;t ask for a copy of the key, but they can ask you to unlock it for them and stand aside. You have the right to refuse, at which point they're liable just to trust their gut and arrest you on whatever charge they can while getting a warrant to proceed further. Of course, that one phone call might be enough to get someone you trust to access a web site and remote wipe that device no (though if that one phone call is recorded, you;re guilty of destruction of evidence too)?

Its a sticky mess. I'm looking forward to a few scant and simple laws regarding what they should and should not access while standing with you at the car. Say simple things like "please show me your most recent text history" so they can confirm you were in fact texting while driving, but without looking into the content of the texts themselves. Diving into your contacts, documents, web history, GPS history, etc should be banned, but i can easily see them asking "where are you coming from" or "where are you headed" and then ask to see your GPS to confirm a route programmed and in process being followed confirms that...

I'm sure dozens of laws will be forthcoming, and I'm sure numerous rulings will be issued throwing out more than half those laws. One thing I can say, generally, I trust the cops to be honest enough, since they're just people working a job like you and me and subject just as equally to unemployment for crossing the line or screwing up, and for them unemployment means a career change, loss of pension, and possibly being imprisoned, not just a change of venue, so they're generally damned careful... Politicians i don't trust, cops i do. (and yea, there will be cases of abuse, but that's what courts and rediculous civil payouts are for).